Tuesday, November 23, 2010

The United States Court of Appeals for the Sixth Circuit sided with a school district in Tennesee in a dispute about whether or not a school district may ban a student from wearing the Confederate flag.

In that case, the student and his father sued the school district after he had been repeatedly required to remove or otherwise conceal Confederate flags he had been wearing. The school district had a policy that “[c]lothing and accessories such as backpacks, patches, jewelry, and notebooks must not display (1) racial or ethnic slurs/symbols, (2) gang affiliations, (3) vulgar, subversive, or sexually suggestive language or images; nor, should they promote products which students may not legally buy; such as alcohol, tobacco, and illegal drugs.” The student contended that this policy violated his First and Fourteenth Amendment rights. The school district contended that the policy was necessary so as to not disrupt the educational process. (The school district had a history of racial problems, including even a bombing of the high school after integration). Ultimately, the trial court granted summary judgment to the school district.

In analyzing the student's claims, the Sixth Circuit reviewed the relevant U.S. Supreme Court precedents on point, namely, Tinker v. Des Moines, Bethel Sch. Dist. No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick. The Sixth Circuit then concluded that "cases yield three principles: (1) under Fraser, aschool may categorically prohibit vulgar, lewd, indecent, or plainlyoffensive student speech, Fraser, (2) under Hazelwood,a school has limited authority to censor school-sponsored student speechin a manner consistent with pedagogical concerns, and (3) the Tinker standard applies to all other student speech and allows regulation only when the school reasonably believes that the speech will substantially and materially interfere with schoolwork ordiscipline." [The Court noted that Morse was a case that had no application here.]

In reviewing the claim under this approach, the Court held that the school district had a reasonable belief that the speech would substantially and materially interfere with schoolwork or discipline. The school district was able to cite to numerous instances of racial discord within the school in the last several years. Additionally, the Court turned back Plaintiff's claims that there was viewpoint discrimination because the policy was written and enforced (for the most part) even-handedly.

About Me

Larry S. Hayman is a Columbus, Ohio Education Attorney. He attended Ohio University, where he was elected to Phi Beta Kappa, earning the highest grade point average in the Political Science Department.
He received his Juris Doctor, cum laude, from The Ohio State University Moritz College of Law. In law school, he served as an Editor on the Ohio State Journal of Criminal Law, received a CALI Award for Excellence for obtaining a perfect score in his legal seminar, and graduated in the top 10% of his class.
Larry has significant litigation experience in a wide variety of forums. He has tried matters in state and federal court, presented cases on appeal, and represented clients in numerous adminstrative proceedings before, among others, the Ohio Department of Education. His experience includes advising clients in Ohio education law and litigating matters involving public schools, charter schools, as well as representing students at the higher education level.
Additionally, Mr. Hayman has presented statewide legal seminars to school administrators and authored published articles in the area of school law.

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